The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,

Meeting on 24 October 2007,

Having concluded its consideration of communication No. 1422/2005, submitted
to the Human Rights Committee by Edriss El Hassy on behalf of his brother,
Abu Bakar El Hassy, under the Optional Protocol to the International
Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by
the authors of the communication, and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

1. The author of the communication is Edriss El Hassy, a Libyan citizen,
born in 1970 and currently residing in the United Kingdom. He is acting on
his own behalf and on behalf of his brother, Abu Bakar El Hassy, also a
Libyan national, born in 1967, who is said to have disappeared in Libya in
1995. The author claims to be a victim of a violation by Libyan Arab
Jamahiriya of article 7, read in conjunction with article 2, paragraph 3, of
the Covenant, and that his brother is a victim of a violation of article 2,
paragraph 3; article 6, paragraph 1; article 7; article 9, paragraphs 1 to
5; and article 10, paragraph 1, of the Covenant. He is represented by the
World Organisation Against Torture. The Covenant and its Optional Protocol
entered into force for Libyan Arab Jamahiriya on 15 August 1970 and 16
August 1989 respectively.

THE FACTS AS PRESENTED BY THE AUTHOR

2.1 The author is the younger brother of Abu Bakar El Hassy. The El Hassy
family was a prominent family under the monarchy, which was later harassed
by the current political regime. The father, a former mayor of Al-Bayda, was
forced to resign after Colonel Gaddafi's military coup. After the father
died in 1974, the author's brother became the family's main breadwinner. He
was a successful businessman and was considered a respectable person in his
community, serving as a mediator in private disputes and making donations to
charitable organizations.

2.2 In the early 1990s, the author's brother was forbidden to leave his
hometown by the Libyan internal security police. Between 1993 and 1995, he
had to report regularly to the internal security police's offices, where he
was questioned about his activities. On some occasions, he was forced to
stay for two or three days at their offices to answer questions. No official
charges were brought against him. In July 1993, the internal security police
searched his house without a warrant and seized all his books and personal
belongings. He was handcuffed, taken to Tripoli and held in detention for
around two months. He was then released and returned to home. Again, he was
never formally charged.

2.3 In early 1995, the author's brother was detained again, sent to Tripoli
and held for one month. After his release, he had to report to the police
every day. On or about 25 March 1995, a police unit came to his house to
arrest him, placing a black bag over his head. His mother and some of his
siblings witnessed the arrest. The same day, the author himself was also
arrested in Benghazi while attending a lecture at the university.

2.4 The author's brother was taken to Abu Salim prison in Tripoli, where he
was placed in the so-called "Military Unit". While waiting to be assigned a
proper cell, he was placed in a toilet area adjacent to the author's cell.
When a prison guard discovered that the two brothers could communicate
through a hole in the wall, he severely beat the author's brother. According
to witness accounts by other detainees who spoke to the author in March and
April 1995, the author's brother was constantly interrogated and
systematically beaten by prison officers. He started to have health problems
as a result of this ill-treatment and poor detention conditions, including
lack of adequate food and water and the damp, hot and unventilated cells. On
or about 20 May 1995, he was released from Abu Salim prison. He returned
home but was kept under tight surveillance and obliged to report every day
to the internal security police.

2.5 On or about 24 August 1995, the author's brother was detained again and
taken to Abu Salim prison, where he was placed in the "Central Unit" for
about ten days and then transferred to the "Military Unit". The author
explains that the "Military Unit" is reserved to members of the army serving
prison sentences, although there were exceptions to this rule. Political
dissidents were held in the Central Unit, where conditions of detention were
considerably worse. On one occasion, the author's brother was brought by
mistake to the author's cell and the author was able to confirm the
extremely poor physical condition of his brother, due to the beatings and
the poor prison conditions.

2.6 At the beginning of May 1996, the author's brother was transferred with
some other 20 detainees back to the Central Unit. In June 1996, the poor
detention conditions in the Central Unit (e.g. lack of proper food and
water, constant beatings, overcrowding and heat) led to some sort of
disturbance later described by the authorities as a "riot". The poor prison
conditions that sparked the Abu Salim "riot" have been widely documented by
major non-governmental organisations and by the Special Rapporteur on
Torture. [FN1] After the "riot", the usual prison guards were replaced by a
special military unit. At the end of June 1996, the special military forces
stormed the Central Unit, killing large numbers of detainees. Over several
days, the detainees in the other unit, including the author, could hear
gunfire and screams of detainees being killed.

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[FN1] In his Report of 12 January 1999 (E/CN.4/1999/61, para.448), the
prison conditions are described as harsh, overcrowded and unsanitary.
Available information indicated that the lack of adequate food medical care
and the use of torture and other forms of ill-treatment had resulted in the
deaths of political prisoners.
------------------------------------------------------------------------------------

2.7 The author has not heard of or seen his brother since these events. The
author himself was detained at Abu Salim for another four years until July
2000: presumably, had his brother survived, he would have met or heard about
him again. Because he did not, the author has strong reasons to believe that
his brother was killed in the massacre. However, the Libyan authorities have
not given the author's family any information on the fate or whereabouts of
the author's brother. Neither have they confirmed his death or returned his
body for burial. Therefore, the author cannot be completely sure that his
brother is dead, and continues to live with this excruciatingly painful
uncertainty. Every attempt by the family to inquire about the fate of the
author's brother has been unsuccessful. One of his brothers even went to Abu
Salim prison to ask about him and was warned by prison officials never to
make inquiries again.

THE COMPLAINT

3.1 The author claims that his brother is a victim of a violation of article
2, paragraph 3. He invokes General Comment No. 6, in which the Committee
stated that "States should establish effective facilities and procedures to
investigate thoroughly cases of missing and disappeared persons in
circumstances which may involve a violation of the right to life".[FN2] He
recalls that if the disappeared victim died in custody, it is incumbent on
the State party to explain how the victim lost his life and inform the
family of the location of the victim's body. [FN3] In the present case, the
State party has taken no steps to investigate the disappearance of the
author's brother and has provided no information to his family as to his
whereabouts or fate for more than ten years. No public official has been
prosecuted and no compensation was ever paid to the family. If the author's
brother is dead, which is likely to be the case, the State party also
breached its duty to inform the family of how he died or where his remains
are located. The author thus argues that the facts of the case reveal a
breach of the right to a remedy guaranteed under article 2, paragraph 3, of
the Covenant.

3.2 The author argues that it may be presumed that his brother was
arbitrarily deprived of his life in violation of article 6 of the Covenant.
He submits that the killing of many prisoners at Abu Salim prison in 1996
was not reasonably necessary for protecting life or preventing escape.
According to estimates, up to 250 detainees are still missing. The sheer
number of prisoners killed during the incident suggests that the State
party's actions were out of proportion to any legitimate law enforcement
objective. The State party has attempted to avoid all accountability for the
massacre by blocking all international and domestic scrutiny into what
happened. This suggests a government cover-up.

3.3 The author claims that his brother is also a victim of violations of
articles 7 and 10, paragraph 1. Firstly, his brother was detained several
times incommunicado, including twice at Abu Salim prison, i.e. from around
25 March 1995 to 20 May 1995, then from 24 August 1995 to the present time.
At no point during his detention was he given the opportunity to speak with
a lawyer or his family, or anyone else in the outside world. He submits that
his brother's repeated and prolonged incommunicado detentions of which the
second one at Abu Salim prison has lasted ten years if he is still alive or
around ten months if he was killed in 1996 amount to torture and cruel and
inhuman treatment in violation of articles 7 and 10, paragraph 1.[FN4]
Secondly, the author recalls that his brother was severely and
systematically beaten during interrogation and once also for having
attempted to communicate with his brother. The accounts given by
eyewitnesses at the prison to the author, as well as the brother's
subsequent physical deterioration witnessed by the author himself are
consistent with what is know about the practices of torture and
ill-treatment inside Abu Salim prison in the 1990s.[FN5] Thirdly, the author
argues that his brother was held in life-threatening detention conditions,
i.e. severe overcrowding, poor ventilation, insufficient and irregular food
supply, lack of medical care and substandard hygienic conditions. He recalls
that the Committee has consistently ruled that such conditions violate
article 7. [FN6]

3.4 The author claims that his brother is a victim of violations of article
9. With regard to article 9, paragraph 1, his brother was arrested on
several occasions without a warrant and held incommunicado for prolonged
periods of time, without ever being charged or convicted of a crime or other
offence. With regard to article 9, paragraph 2, he was never informed of the
reasons for his multiple arrests and was never informed of the charges
against him. With regard to article 9, paragraph 3, he was never brought
before a judge. With regard to article 9, paragraph 4, the authorities made
it impossible for him to challenge the legality of his detention by
"disappearing him". With regard to article 9, paragraph 5, the authorities
made it impossible for him to seek compensation for his unlawful arrests and
detentions.

3.5 With regard to the author himself, he claims to be victim of a violation
of article 7, read in conjunction with article 2, paragraph 3, because of
the anguish caused to him by his brother's disappearance. [FN7] This anguish
was exacerbated by the fact that he witnessed his brother's physical and
psychological deterioration in prison before his disappearance, knowing that
he was being subjected to torture. Moreover, he was present in Abu Salim
prison when special military forces stormed the unit where his brother was
held and could hear the gunshots and screaming of the prisoners as they were
being killed.

3.6 With regard to the issue of exhaustion of domestic remedies, the author
recalls that since he was released from Abu Salim prison in July 2000, he
was required to report regularly to the local police station, where he was
routinely threatened with further detention, should he intend to file a
complaint to the judiciary. He contends that there are no available remedies
for human rights violations in Libya, because the judiciary is not
independent from the government. Successful prosecutions of government
officials for human rights violations are virtually nonexistent and the
regime has never accounted for the fate of disappeared persons or
investigated or prosecuted officials responsible for such disappearances.
FN8 The author further contends that he was not in a position to appeal to
the judicial system to investigate the fate of his missing brother because
such a course of action would have exposed him and his family to a high risk
of harm at the hands of government officials, especially considering that he
had been held in detention for over five years and that his family and him
have been threatened on several occasions by the internal security police.
He makes several references to cases where relatives have been killed after
making enquiries about their detained loved ones. He also recalls that one
of his brothers went to Abu Salim prison to enquire about the missing
brother and received threats as a result.

------------------------------------------------------------------------------------
[FN8] The author refers to the Committee's latest Concluding Observations on
Libya (CCPR/C/79/Add.101), as well as various NGO reports.
------------------------------------------------------------------------------------

3.7 The author requests that the Committee recommend to the State party to
fully investigate the circumstances of the disappearance of his brother and
promptly communicate this information to the family, and to release him
immediately if he is still detained at Abu Salim prison or to return his
remains to his family if he is dead; to bring to justice those responsible
for the disappearance, ill-treatment and death of his brother; to adopt
measures necessary to ensure he and his family receive full compensation for
the violations suffered; and to adopt necessary measures to ensure that
similar violations do not occur in the future.

STATE PARTY'S FAILURE TO COOPERATE

4. On 9 May 2006, 20 September 2006 and 28 November 2006, the State party
was requested to submit information on the admissibility and merits of the
communication. The Committee notes that this information has not been
received. It regrets the State party's failure to provide any information
with regard to the admissibility or substance of the author's claims. It
recalls that under the Optional Protocol, the State party concerned is
required to submit to the Committee written explanations or statements
clarifying the matter and the remedy, if any, that it may have taken. In the
absence of a reply from the State party, due weight must be given to the
author's allegations, to the extent that these have been properly
substantiated.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

CONSIDERATION OF ADMISSIBILITY

5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its Rules of
procedure, decide whether or not it is admissible under the Optional
Protocol of the Covenant.

5.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2(a), of the Optional Protocol.

5.3 With respect to the requirement of exhaustion of domestic remedies, the
Committee reiterates its concern that in spite of three reminders addressed
to the State party no information or observations on the admissibility or
merits of the communication have been received from the State party. In the
circumstances, the Committee finds that it is not precluded from considering
the communication under article 5, paragraph 2 (b), of the Optional
Protocol. The Committee finds no other reason to consider the communication
inadmissible and thus proceeds to its consideration on the merits, in as
much as the claims under article 6; article 7; article 9; article 10,
paragraph 1; and article 2, paragraph 3, are concerned. It also notes that
issues may arise under article 7, with respect to the disappearance of the
author's brother.

CONSIDERATION OF MERITS

6.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it, as provided under
article 5, paragraph 1, of the Optional Protocol.

6.2 As to the alleged detention incommunicado of the author's brother, the
Committee recognises the degree of suffering involved in being held
indefinitely without contact with the outside world. It recalls its General
Comment No. 20 on article 7, which recommends that States parties should
make provision against detention incommunicado. It notes that the author
claims that his brother was detained incommunicado on several occasions,
including twice at Abu Salim prison, from around 25 March 1995 to 20 May
1995, and then again from 24 August 1995 to the present time. The Committee
notes that the author was detained in the same prison and saw his brother
there on several occasions, although he was not allowed to communicate with
him. In these circumstances, and in the absence of any explanations from the
State party in this respect, due weight must be given to the author's
allegations. The Committee concludes that to keep the author's brother in
captivity and to prevent him from communicating with his family and the
outside world constitutes a violation of article 7 of the Covenant. [FN9]

6.3 As to the alleged beatings of the author's brother, the Committee notes
that eye-witnesses at the prison informed the author that his brother was
severely and systematically beaten during interrogation. Furthermore, the
author himself witnessed the subsequent deterioration of his brother's poor
physical condition. In these circumstances, and again in the absence of any
explanations from the State party in this respect, due weight must be given
to the author's allegations. The Committee concludes that the treatment of
the author's brother at Abu Salim prison amounts to a violation of article
7.

6.4 As to the alleged conditions of detention at Abu Salim, the Committee
takes note of the author's allegations that the conditions of detention in
which his brother was kept were lifethreatening. It reiterates that persons
deprived of their liberty may not be subjected to any hardship or constraint
other than that resulting from the deprivation of liberty and that they must
be treated with humanity and respect for their dignity. In the absence of
information from the State party on the conditions of detention at Abu Salim
prison in which the author's brother stayed, the Committee finds a violation
of article 10, paragraph 1.FN10

6.5 With regard to the alleged violation of article 9, the information
before the Committee shows that the author's brother was arrested on several
occasions by agents of the State party without a warrant and held
incommunicado without ever being informed of the reasons for his arrests or
the charges against him. The Committee recalls that the author's brother was
never brought before a judge and never could challenge the legality of his
detention. In the absence of any pertinent explanations from the State
party, the Committee finds a violation of article 9. [FN11]

6.6 As to the alleged disappearance of the author's brother, the Committee
recalls the definition of enforced disappearance in article 7, paragraph
2(i), of the Rome Statute of the International Criminal Court: "Enforced
disappearance of persons means the arrest, detention or abduction of persons
by, or with the authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing them from the protection of
the law for a prolonged period of time." Any act leading to such
disappearance constitutes a violation of many of the rights enshrined in the
Covenant, including the right to liberty and security of person (art. 9),
the right not to be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (art. 7) and the right of all persons deprived of
their liberty to be treated with humanity and with respect for the inherent
dignity of the human person (art. 10). It also violates or constitutes a
grave threat to the right to life (art. 6). [FN12] In the present case, in
view of his brother's disappearance since June 1996, the author invokes
article 2, paragraph 3.

6.7 The Committee notes that the State party has provided no response to the
author's allegations regarding the forced disappearance of his brother. It
reaffirms that the burden of proof cannot rest on the author of the
communication alone, especially considering that the author and the State
party do not always have equal access to the evidence and frequently the
State party alone has the relevant information.[FN13] It is implicit in
article 4, paragraph 2, of the Optional Protocol that the State party has
the duty to investigate in good faith all allegations of violations of the
Covenant made against it and its representatives and to furnish to the
Committee the information available to it. In cases where the allegations
are corroborated by credible evidence submitted by the author and where
further clarification depends on information exclusively in the hands of the
State party, the Committee may consider an author's allegations
substantiated in the absence of satisfactory evidence or explanations to the
contrary presented by the State party.

6.8 In the present case, counsel has informed the Committee that the
author's brother disappeared in June 1996 at Abu Salim prison where he was
last seen by the author himself and other detained, and that his family
still does not know what has happened to him. In the absence of any comments
by the State party on the author's brother's disappearance, the Committee
considers that this disappearance constitutes a violation of article 7.

6.9 The author invokes article 2, paragraph 3, of the Covenant, which
requires States parties to ensure that individuals have accessible,
effective and enforceable remedies for asserting the rights enshrined in the
Covenant. The Committee attaches importance to States parties' establishment
of appropriate judicial and administrative mechanisms for addressing alleged
violations of rights under domestic law. It refers to its General Comment
No. 31 which states that failure by a State party to investigate allegations
of violations could in and of itself give rise to a separate breach of the
Covenant. [FN14] In the present case, the information before it indicates
that the author's brother did not have access to such effective remedies,
and the Committee concludes that the facts before it reveal a violation of
article 2, paragraph 3, read in conjunction with article 7. [FN15]

6.10 As to the possible violation of article 6 of the Covenant, the
Committee notes that the author has not explicitly requested the Committee
to conclude that his brother is dead. Moreover, while invoking article 6,
the author also asks for the release of his brother, indicating that he has
not abandoned hope for his reappearance. The Committee considers that, in
such circumstances, it is not for it to formulate a finding on article 6.

6.11 With regard to the author himself, the Committee notes the anguish and
stress that the disappearance of the author's brother since June 1996 caused
to the author. It therefore is of the opinion that the facts before it
reveal a violation of article 7 of the Covenant with regard to the author
himself. [FN16]

7. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal violations by the
State party of article 2, paragraph 3, read in conjunction with article 7;
article 7 standing alone; article 9, article 10, paragraph 1, of the
Covenant with regard to the author's brother; and of article 7 of the
Covenant with regard to the author himself.

8. In accordance with article 2, paragraph 3, of the Covenant, the State
party is under an obligation to provide the author with an effective remedy,
including a thorough and effective investigation into the disappearance and
fate of the author's brother, his immediate release if he is still alive,
adequate information resulting from its investigation, and adequate
compensation for the author and his family for the violations suffered by
the author's brother. The Committee considers the State party duty-bound to
conduct thorough investigations into alleged violations of human rights,
particularly enforced disappearances and acts of torture, and also to
prosecute, try and punish those held responsible for such violations. [FN17]
The State party is also under an obligation to take measures to prevent
similar violations in the future.

9. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, that State party has undertaken to ensure all
individuals within its territory or subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable
remedy in case a violation has been established, the Committee wishes to
receive from the State party, within 180 days, information about the
measures taken to give effect to the Committee's Views. The State party is
also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]